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Sunday, 22 February 2015

Friday’s decisions on net neutrality issued by AKOS are another big win in a row for Slovenian citizens and net neutrality advocates. In the new decisions AKOS bans a zero-rated mobile TV service and web portal provided by AMIS (Mobia TV) and Tušmobil (Tuškamra), respectively. Following the previous two decisions, issued four weeks ago, the latest decisions further bolster net neutrality and limit zero-rating practices of mobile network and virtual network operators.

Slovenia’s net neutrality law has been in force since January 2013. Yet, zero-rating has become wide spread amongst mobile operators as AKOS turned a blind eye to these practices. They now offer everything from zero-rated web content, music and video streaming to cloud storage, with associated traffic exempted from data caps and used without any volume limits (or limits significantly higher than those of the data caps).

AKOS’s decisions respond to a complaint filed by the Electronic Communications Council in July 2014. The regulator has carried out separate investigations and hasn’t wrapped them into a single proceeding. Even in the decision issued to Telekom Slovenije it banned only a single zero-rated service (Deezer music streaming) although the complaint had been filed for four different zero-rated services including music streaming (Deezer), video streaming (HBO GO and UEFA Champions League) and Telekom’s own cloud storage (TViN Shramba).

With its decisions AKOS has made it clear that any type of content, service or application delivered over the internet that does not count towards users’ data caps violates national net neutrality law and is illegal. This is in line with our first and comprehensive explanation why zero-rating violates Slovenian net neutrality law.

Several speculations have emerged as to why AKOS hasn’t banned Telekom Slovenije’s video streaming (HBO GO and UEFA Champions League) and cloud storage services, while banning Si.mobil’s equivalent of storage (Hanger Mapa) and Amis’s equivalent of video streaming (Mobia TV). The speculations have been reinforced by Telekom Slovenije’s announcement to stop providing HBO GO, while leaving the UEFA Champions League video streaming and cloud storage untouched. This is unacceptable and AKOS shall intervene as soon as possible.

There is no legal grounds in communications or media law for any exemption of internet streaming of sporting events or cloud storage traffic. Moreover, there are provisions in the Consumer Protection Act that prohibit discrimination by requiring services to be sold under equal conditions to all consumers. Although these provisions are not equivalent to common carrier discriminations and preferences provisions known in the US or Canada, they shall be interpreted in broad terms and therefore bring additional strong protection against any unjust or unreasonable discrimination in the provision of electronic communications services.

The mobile operators must stop discriminating against internet traffic by zero-rated content, services or applications within 60 days of receiving the regulator’s decisions. Telekom Slovenije and Si.mobil have already published new general terms and conditions. Amis and Tušmobil are expected to follow in four weeks. However, the operators are not giving in. They are prepared to fight the regulator’s decisions with all legal means. It is actually a common practice used not only by operators but also by AKOS to fight every regulatory or judicial decision with all legal means, even when the chances of wining are negligible. In this spirit, Telekom Slovenije and Si.mobile have filed administrative disputes against the regulator’s decisions and temporary injunctions to withhold the decisions. They also announced to file a request for a constitutional review of Article 203 of the Electronic Communications Act.

On the other hand, the decisions have already had a positive impact and, as we correctly predicted, consumers benefited from the regulator’s net neutrality decisions. Telekom Slovenije and Si.mobile have both come up with special offers and packages with larger data caps or inexpensive data cap options. Consumers may shortly expect even more plans with larger data caps.